The genesis of this article lies in an interesting report of former Chief Justice of India, Dipak Misra, claiming that he was proud to be called a champion of gender equality. It reminded me of a king who strutted around naked believing that he was wearing a cloak which only the wise could see, until a boy innocently asked why the king was naked. And the rest is what moral stories are made of.

The verdict on Sabarimala by the bench headed by Misra reminded me of another scenario, of a person covered himself with hornet repellants after throwing stones at a hornet’s nest in a crowded place. For now, I will only say that the Contempt of Court Act is a totally anti-democratic law and is the basic, if not only, reason for the abysmal failure of our judiciary in performing its assigned task of delivering justice.

The National Commission to review the working of the Constitution, headed by former CJI, M.N. Venkatachaliah with six of the 11 members from the judiciary, stated in its report (2002):

‘Judicial system has not been able to meet even the modest expectations of the society. Its delays and costs are frustrating, its processes slow and uncertain. People are pushed to seek recourse to extra-legal methods for relief. Trial system both on the civil and criminal side has utterly broken down.’ And, ‘Thus we have arrived at a situation in the judicial administration where courts are deemed to exist for judges and lawyers and not for the public seeking justice’.

The Commission’s approach to the judiciary has been exposed by Dr Subhas Kashyap, a member and former Secretary General of Lok Sabha, who observed in his notes:

‘While no comments are being made on what went wrong in the procedure, priorities and perspective, it may be put on record that several of the recommendations now forming part of the report go directly counter to the clear decisions of the Commission on which the unanimously adopted draft report of the Drafting and Editorial Committee was based’.

One example:

Attention is also invited to the decision taken by the Commission at its 14th Meeting held on 14-18 December, 2001. Para 16 of the minutes records that “There shall be a National Judicial Commission for making recommendation as to the appointment of a Judge of the Supreme Court (other than the Chief Justice of India), a Chief Justice of a High Court and a Judge of any High Court.”

“The composition of the National Judicial Commission would be as under:

a) The Vice-President of India

b) The Chief Justice of India

c) Two senior-most Judges of the Supreme Court, next to the Chief Justice

d) The Union Minister for Law & Justice.”

However the composition of the NJC as recommended by the Commission in its Final Report is:

The National Judicial Commission for appointment of judges of the Supreme Court shall comprise of:

(1) The Chief Justice of India      - Chairman

(2) Two senior most judges of the Supreme Court - Member

(3) The Union Minister for Law and Justice   - Member

(4) One eminent person nominated by the President after consulting the Chief Justice of India - Member

We know what happened to the National Judicial Appointments Commission Act, duly enacted through constitutional process. This is when the appointments are the least of the problems.  

The more important need is for a National Judicial Accountability Commission, constituted in the form of a jury, with just one member from the judiciary to guide the proceedings (as in military court martials, where a law qualified member of the Judge Advocate General’s branch acts as legal guide, but unlike them in that the members should be from the public). This commission should have powers to try and punish delinquent judges with twice the severity of the punishment that an ordinary citizen would invite for a similar offence.

In this context the online petition posted in 2005 is relevant:

https://www.slideshare.net/raviforjustice/310505-the-petition-toconstituteanationaljudicialcommission. The signatories (429) and their comments are at

https://www.slideshare.net/raviforjustice/310505thepetitiontoconstituteanationaljudicialcommissionsignatures1to429

Ms Sumitra Kulkarni, the only woman member of the Commission and a politician, summed up the performance of the Commission thus:

1)      I believe in a unified and truly secular India. However, the Commission debates seemed often to reduce the Constitution to being a platform for divisiveness and not unification.

2)    The Commission did not initiate or promote sincere debate in the public with regards to the issues it was contemplating. The effort was more to “evade and defer” instead of to “identify issues, table them for debate and to deal with them”.

Now coming to the allegations against Misra by Chelameswar and others, who questioned the integrity of the Chief Justice of India and attributed motives to him even in the allotment of cases to different benches. Most, if not all of them, were party to sending Karnan, then a sitting judge of the Kolkata High Court, to six months in prison for contempt of court. Hence, there was no way the allegations of these judges should have been condoned.

It needs to be reiterated that a judge of the High Court is entitled to equal protection as a judge of the apex court in matters of misconduct. Proviso 1(b) to Article 217 applies to a high court judge as Proviso 2(b) to Article 124 applies to a Supreme Court judge. One may argue that these provide for removal of judges only and not for punishment for contempt. It can be countered that removal should be the mandatory step for any judge involved in any act unbecoming of the office he holds.

I continue to believe that the judiciary is an indispensable part of any system of governance with emphasis on rule of law. Its duties are no doubt onerous, because ultimately its failure to perform can be disastrous for society. Whether our judiciary measures up to the expectations of the people who pay a heavy price to sustain it is a question that needs to be asked firstly by the judges themselves. To a layman it remains a behemoth that is best kept away from. Wisdom through the ages has it that it is a blessing to pass through life without entering a police station or a court.